Florea v The Judicial Authority Carei Courthouse, Satu Mare County, Romania

In an extradition case, a strong presumption that a fellow European state will comply with the European Convention on Human Rights may be rebutted by evidence of enduring and systemic prison overcrowding. A pilot judgment is helpful evidence but is not required. Where there is a real likelihood of less than three square metres of personal space, a serious Article 3 issue arises without any additional aggravating feature. The assessment remains fact-sensitive and must consider matters including the duration of detention, the prison regime and the available space. On the particular facts, return would breach Article 3 if the prisoner received two square metres or less of personal space. A precise undertaking securing more than two square metres in semi-open conditions could remove the real risk.

The appellant had been ordered by Senior District Judge Riddle to surrender to Romania under a conviction European Arrest Warrant. He appealed on a new human-rights ground under section 21 of the Extradition Act 2003, arguing that overcrowded Romanian prisons created a real risk of treatment contrary to Article 3 of the European Convention on Human Rights.

The evidence focused principally on Satu Mare prison, where the appellant was likely to serve a three-year sentence, and potentially Oradea prison. The central issue was whether the evidence established substantial grounds for believing that return would expose him to a real risk of inhuman or degrading treatment, and whether a sufficiently precise undertaking could prevent that risk.

1. Applicable test. The court held that the starting point was the strong presumption that a state participating in the European Arrest Warrant scheme would comply with its Convention obligations. That presumption could be rebutted by evidence of an enduring or systemic problem. The issue was not whether the problem was formally classified as systemic or systematic.
2. Pilot judgments. A pilot judgment of the European Court of Human Rights could provide powerful evidence of a structural problem, but its absence did not prevent the court from assessing whether prison overcrowding was enduring and systemic.
3. Personal space. The court accepted the reasoning in Ananyev v Russia that less than three square metres of personal floor space created a strong presumption of an Article 3 violation without another aggravating feature. This was not an inflexible rule. Duration, the precise circumstances of detention and features of the prison regime could be relevant.
4. Application. A three-year sentence was a substantial period and strongly pointed towards a future violation. Return to Satu Mare, where the appellant might have only about 1.56 square metres, would breach Article 3. The possible placement at Oradea, with apparent under-occupancy in its semi-open section, meant that the appeal could not be finally disposed of on the evidence then available.
5. Undertaking. A general promise to comply with Article 3 would be inadequate. The respondent was given until 4.00 pm on 1 September 2014 to provide an undertaking that the appellant would serve his sentence in semi-open conditions with more than two square metres of personal space. If such an undertaking were provided, the court would not be satisfied that substantial grounds existed for a real risk of an Article 3 violation by reason of overcrowding. Further directions were given for the appellant’s response and any necessary hearing.

• Senior District Judge. On 6 August 2013, Senior District Judge Riddle ordered the appellant’s surrender to Romania under a European Arrest Warrant.
• High Court (Administrative Court). The Divisional Court considered the new Article 3 ground and directed the respondent to provide a sufficiently precise undertaking concerning the appellant’s prison accommodation.